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1 Stranger-Initiated Annuity Transactions and the Case for Insurable Interest By David T. McDowell, Thomas F.A. Hetherington and Kendall J. Burr I. Introduction Variable annuities have traditionally been viewed as long-term investment vehicles that offer a number of desirable benefits, including a guaranteed future income stream, favorable tax treatment, and standard or enhanced death benefits paid to a beneficiary in the event of untimely death. Savvy investors, however, claim to have discovered a loophole in these products, exploiting them to invest aggressively in the securities markets with the assurance that any short-term losses will be borne by the insurance company. To implement their strategy, they recruit terminally ill individuals to serve as the measuring lives for annuities with built-in death benefits, which provide a full and prompt refund of the investors premiums if their high-risk investments go awry. This predation on sick individuals who often claim not to have understood that their poor health was being exploited as a hedge against market losses by a total stranger raises a significant legal question: should these Stranger-Originated Annuity Transactions, or STATs, 1 be rescinded as unlawful wagers on human lives, violating the well-established insurable interest requirement applied in life insurance cases? Examining the pertinent laws applicable to annuities and life insurance, persuasive arguments can be made that insurable interest laws apply to annuity products, and that stranger investors may not use the products to profit from the deaths of other human beings. II. The Product: Variable Annuities A variable annuity is a product, primarily sold by life insurance companies, that incorporates certain features of an investment account and life insurance. Fundamentally, an annuity is a contract pursuant to which a purchaser agrees to make one or more premium payments to the issuer up front, during an accumulation phase, and the issuer agrees to make a series of payments thereafter, either to the purchaser or to a designated beneficiary, during a payout phase. Thus, an annuity is essentially a loan from the purchaser that the insurer pays back over time. An annuity may be fixed, meaning the insurance company promises to pay a minimum rate of interest or a set dollar amount for each periodic payment, or variable, allowing the premiums to be invested in mutual funds or other options in the bond and equity markets. 2 Variable annuity products offer a range of benefits that make them appealing to individuals interested in both preparing for retirement and safeguarding against untimely death. Variable annuities typically offer three major categories of benefits: guaranteed income distribution, favorable tax treatment, and death benefits. 3 First, variable annuities provide a guaranteed distribution of periodic income. An annuity may be structured so as to make payments for a period certain, but is more commonly structured as a life annuity, made payable for the duration of the lifetime of a designated annuitant. The income distribution schedule and amounts are typically fixed at the time of annuitization, the point at which the contract owner agrees to freeze all or some of the funds invested in the accumulation phase and use them to commence distributions in a payout phase. Thus, a fundamental characteristic of a life annuity is its ability to provide a guaranteed source of income lasting as long as the uncertain lifetime of the annuitant. This offers a form of longevity insurance, protecting the designated beneficiary against the possibility that the annuitant will outlive the assets available from the accumulated value of the investment at the point of annuitization. Given this framework, a purchaser of a variable annuity will often name the same person as both annuitant and beneficiary, or will designate one person as the annuitant and his or her spouse, child, or other family member as the beneficiary. The second attractive feature of a variable annuity is its favorable tax treatment. Under the Internal Revenue Code, variable annuities owned by individuals may be invested during the accumulation phase in a tax-deferred manner, 4 much like a Roth 401(k). As a variable annuity is funded during the accumulation phase with after-tax dollars, any internal accumulation remains tax free. Once annuitized, any amounts withdrawn from the annuity during the payout phase over and above the amounts contributed are taxable. These market profits are taxed at ordinary income tax rates rather than capital gains rates. As such, the utility of the variable annuity is maximized if used as a long-term investment vehicle. Third, a variable annuity typically includes a Guaranteed Minimum Death Benefit ( GMDB ) to be provided to the beneficiary upon the annuitant s death. Usually, the life insurer offers a standard death benefit provision already built into the base contract, generally guaranteeing the beneficiary an amount no less than the greater of (1) the total face value of the account, or (2) the total of all premiums paid, minus any adjusted withdrawals from the account. Enhanced or stepped-up GMDB options are often available à la carte for additional fees, either as part of the annuity contract or as a contract rider. A stepped-up GMDB option may, for example, allow the customer to lock in the account s face value as of a specified date, if the account s investments have been performing well. The issuer may also offer a high water mark or anniversary NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1 41

2 ratchet option, which looks at the account face value on each contract anniversary date and guarantees a minimum GMDB based on the highest account value as of any of those dates. Or the company might offer a roll-up option, guaranteeing a minimum rate of return on the invested funds. Various combinations of these enhanced options may also be available. While other elective features may also be available for additional fees, 5 these three main advantages guaranteed income distribution, tax-deferred investment, and death benefits are the defining features of a variable annuity. Because these products incorporate death benefits, as well as lifetime benefits whose duration is tied to the date of the annuitant s death, they are often treated as an insurance contract, or as a hybrid product combining features of an investment product and life insurance. Whether a variable annuity is actually legally defined as life insurance varies from state to state, as discussed in further detail below. III. The Backdrop: STOLI Before examining how the death benefit component of variable annuities has been recently exploited to pursue risk-free investment opportunities by third-party investors, it is first necessary to examine recent developments in the life insurance industry. Over the past decade, investors and agents have developed a gray market in life insurance known as Stranger Originated Life Insurance ( STOLI ). 6 STOLI refers to any transaction or arrangement by which an investor seeks to purchase a life insurance policy on the life of an individual, typically an elderly insured, even though the investor does not have an insurable interest in the insured s life. The investor typically pays the premiums and structures the transaction so that the investor obtains ownership of the policy, the beneficial interest of a trust holding the policy, or otherwise secures control of the policy through a variety of clandestine transactions, enabling it to re-sell the policy or its controlling interest on the life settlement market. STOLI promoters use various methods to acquire interests in life insurance policies. The investor might agree to buy the policy outright from the insured on a pre-determined date, or purchase a beneficial interest in a trust holding the policy. 7 Or the policy might be funded by premium financing for a period of two years (the typical statutory contestability period of a life insurance policy), after which the insured is given the option of either paying off the loan, which typically has large administrative fees and a high interest rate, or surrendering the policy to the investor in full satisfaction of the loan. 8 STOLI practices pose significant problems for the life insurance industry. STOLI often promotes fraud, incentivizing investors and agents to encourage exaggeration of the insured s net worth and income in order to qualify for larger death benefits, 9 and sometimes takes place even without the knowledge or complicity of the insured. 10 The most significant problem posed by STOLI, however, is its noncompliance with the well-established requirement that a life insurance policy s initial owner, beneficiary, or both must possess an insurable interest in the life of the insured. This requirement is based on public policy and is designed to prevent wagering on human lives, which creates perverse economic incentives to hasten the insured s death. 11 As discussed in further detail below, nearly all states impose insurable interest requirements in a life insurance transaction. Due to the proliferation of STOLI practices in the last decade, many states have also recently enacted additional statutes specifically targeting STOLI transactions and clarifying that they violate the insurable interest requirement. For example, the California Insurance Code, as amended in 2009, defines entering into a STOLI arrangement as a fraudulent life settlement act, 12 and defines STOLI to include any arrangement designed to initiate the issuance of a life insurance policy in this state for the benefit of a third-party investor who, at the time of policy origination, has no insurable interest, under the laws of this state, in the life of the insured. 13 A majority of states have already enacted legislation specifically targeting STOLI practices just in the past few years, 14 with additional legislation in other states likely to follow. Thus, the past few years have witnessed a flurry of legislation and an industry-wide spotlight on the STOLI issue. Legislators and life insurers, focusing their efforts solely on life insurance policies owned by strangers, apparently did not foresee that despite these tightened restrictions, some opportunistic investors would move on to exploit variable annuities in an analogous but unanticipated manner. IV. STATs The life insurance industry is now facing a new challenge from brokers and investors orchestrating the purchase of variable annuities offered by life insurance companies, referred to as Stranger-Originated Annuity Transactions, or STATs. STATs are the subject of several well-publicized lawsuits currently pending in federal court in the District of Rhode Island, 15 in which two life insurance companies, Transamerica Life Insurance Company and Western Reserve Life Assurance Company of Ohio, claim to have been defrauded by STAT arrangements masterminded by Rhode Island attorney Joseph Caramadre and carried out with the collaboration of investors and brokerage firms. 16 Caramadre, a real-estate specialist, believed he had discovered a loophole in the variable annuity product that allowed its use to facilitate aggressive short-term investments. 17 By locating individuals with extremely poor health and a short life expectancy who would be willing to act as annuitants for variable annuities with GDMBs, Caramadre realized that one could engage in high-risk, short-term investments with the expectation that any potential losses would be borne by the insurance company upon the individual s death. 42 NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1

3 To implement their strategy, STAT originators like Caramadre first seek out potential annuitants with terminal illnesses, recruiting such individuals through a number of unsavory methods that have drawn national attention. Caramadre, for example, published advertisements in the Rhode Island Catholic, an official diocese publication, stating Terminal Illness? $2,000 in CASH, Immediately Available. 18 The ads further promised that the funds were offered by a compassionate organization [hoping] to provide financial assistance for those near death. 19 STAT originators also target church patrons and workers and patients in nursing homes, hospices, and hospitals, circulating flyers or through direct solicitation 20 and generally offering between $2,000 and $5,000 for their participation. 21 Once a terminally ill individual is identified, the STAT originator arranges for a licensed agent of an annuities brokerage firm to provide and sign an application for a variable annuity, designating an investor as the owner and beneficiary and having the terminally ill individual serve as the annuitant. The annuitization date is usually far enough in the future that a terminally ill annuitant will likely never receive an annuity payment. STAT sponsors opt on the application for either a standard or stepped-up GMDB, guaranteeing that the beneficiaries will receive a death benefit totaling at least the amount of premiums paid, and in some cases also purchasing additional enhanced benefits. 22 The GMDB acts as a safety net, allowing the investor to make aggressive investments within the variable annuity with the expectation that, if they do not perform well, the insurance company will pay out at least the total of all premiums paid upon the annuitant s death. V. The National Response STATs have been widely criticized since coming to national attention over the past two years, with particular focus on the disturbing manner in which terminally ill annuitants are recruited. Often, the individuals or their families claim to have been misled about the nature of the arrangement, believing that the solicitors were simply offering charity. 23 As one such individual later testified to the National Association of Insurance Commissioners ( NAIC ), What if I die now? He s going to collect. I don t want to see him get that kind of money. Not for bodies. I m not going to sell my body. 24 Another individual testified to a federal grand jury that Caramadre and his associates never mentioned annuities at all, and never told him that someone would profit from his wife s death, saying, They preyed on the sick and the weak at a vulnerable time. 25 The plaintiffs in the Rhode Island cases have even alleged that some of the annuitants signatures may have been forged. 26 However unsavory and exploitative STAT tactics may appear, questions still remain regarding their legality. The similarities between STATs and STOLI practices are obvious, particularly their exploitation of elderly or ill individuals for the profit of investors with no genuine interest in the continued life of those individuals. But despite the flurry of recent statutory enactments relating to STOLI, legislatures have yet to expressly tackle STATs. The NAIC held hearings in May 2010 at which numerous groups, including the Life Insurance Settlement Association ( LISA ), the National Association of Insurance and Financial Advisors ( NAIFA ), and the American Council of Life Insurers ( ACLI ), testified in condemnation of STATs and described them as sharing many of the same troubling characteristics of STOLI practices, but not all groups were yet prepared to announce their support for implementing new regulation or legislation to directly address STATs. 27 Several state insurance departments have issued bulletins regarding the potential harms of STATs, but they have not openly condemned them as illegal per se, instead opting to merely warn life insurers and recommend the implementation of safeguards. 28 Courts have yet to resolve open questions regarding the legality of STATs. The Securities and Exchange Commission is investigating Caramadre and his associates for possible violations of the securities laws, 29 but that investigation is still ongoing. Outside of Rhode Island, several other lawsuits have been filed involving disputes regarding the validity and enforceability of stranger-initiated annuities, and whether insurance companies must remain bound to those contracts. 30 However, only one court, the District of Rhode Island in dealing with Caramadre s scheme, has thus far rendered a substantive decision directly addressing the validity of STATs, in Western Reserve Life Assurance Co. of Ohio v. Conreal LLC (hereinafter Conreal ). 31 Moreover, that court s conclusion, that the contracts were not voidable for lack of insurable interest nor contestable on fraud grounds, is based on a tenuous interpretation of Rhode Island statutes and, as discussed further below, raises more questions than it answers. Regardless, in at least forty-nine states, the question as to whether STATs should be viewed as analogous to STOLI policies, and potentially subject to rescission under existing insurable interest laws, remains a matter of first impression. VI. Comparing and Contrasting STATs and STOLI STATs and STOLI arrangements share several key elements. For both types of transactions, a third-party investor is the real party in interest acquiring the product, despite having no familial relationship or other interest in the life of the individual insured or annuitant. Both also involve the exploitation of a product offered by life insurance companies, and both involve products that guarantee a death benefit. But obvious distinctions also exist between life insurance policies and variable annuities worth consideration before addressing whether STATs should be subject to insurable interest requirements. First, life insurance policies and variable annuities trigger different financial obligations on the part of the issuing insurer during the named individual s lifetime and after his or her death, and thus implicate different interests for the insurer with respect to that individual s longevity. In the case of life insurance, the insurer hopes to benefit by NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1 43

4 continuing to receive premium payments for the duration of the insured s life. As such, insurance companies have a clear interest in obtaining more thorough information from applicants seeking life insurance that will enable them to more accurately assess the mortality risk of persons and determine proper risk classes for each policy, so as to maximize average expected profits. By contrast, issuers of variable life annuities only continue to receive premium payments during the accumulation phase, but not after the contracts are annuitized. Moreover, before STAT exploitation, the only perceived profitable use of variable annuities was for long-term investments. Customers who purchase annuities were therefore viewed as self-selecting, being highly unlikely to commit large proportions of their funds to a long-term investment if their health was poor. 32 Thus, for a typical non-stat annuity with a GMDB, the initial mortality rate is roughly 1%. 33 Based on this risk assessment, most insurers did not see a need to engage in extensive underwriting, and structured their variable annuity applications and contracts accordingly, unaware that the mortality risk for a STAT, by definition, would approach 100%. 34 Thus, insurance companies have historically had comparatively few financial incentives to examine a prospective annuitant s health or life expectancy, and thus do not engage in the same degree of underwriting they ordinarily require of prospective insureds. These different underwriting requirements may make it more difficult for an insurer to prove fraud in a STAT case than in a STOLI case. STOLI disputes are likely to involve more clear evidence of fraud and misrepresentation, given that applicants must answer direct questions on the policy applications regarding their medical condition and finances. Annuity applications often do not ask such questions. Of course, the evidence in a particular STAT case may still show express misrepresentations, or a failure to disclose the annuitant s failing health or the fact that the beneficiary and the annuitant are total strangers, despite a duty to do so. The Rhode Island plaintiffs, for example, allege that Caramadre set up a relatively low initial premium on the application, invested conservatively, to avoid arousing the suspicions of the insurer, and then, after issuance, dramatically increased the premium payments and transferred the funds into riskier investment options. 35 Caramadre and his associates, however, respond that the insurer does not request medical information or inquire about the relationship between the annuitant and the beneficiary, and argue that the application, contract, or prospectus is silent on such issues. 36 Another key difference between life insurance policies and variable annuities relates to the duration of the contract s contestability period. Life insurance policies typically have clauses providing that they are contestable on grounds of material misrepresentation for a period of two years, and most states have enacted statutes requiring insurers to promise no more than two years of contest- ability in life insurance contracts. 37 But although state statutes sometimes allow insurers to also provide for up to two years of contestability for annuity contracts, 38 some insurers still opt for a shorter contestability period and choose to make their annuity contracts incontestable from the date of contract issuance. 39 Again, such business decisions reflect the perceived self-selective nature of annuity applicants, and demonstrate how insurers simply did not foresee how variable annuity products might be exploited by stranger investors. The Conreal opinion shows that such business decisions may come back to haunt the insurer. There, the court determined that the fact that the insurers drafted their annuity contracts as incontestable from the policy date foreclosed any argument by the insurers that the policies should be rescinded due to fraud. 40 Notably, the court still allowed the insurers to pursue fraud claims seeking damages from Caramadre and his associated sponsors, agents, and brokers, noting that unlike Harry Potter s Invisibility Cloak, which could conceal not only Harry, but anyone who wore it, the incontestability clauses could not be invoked by third parties to the contract. 41 But as to the owners of the annuities, and the validity of the contracts themselves, the court dismissed all fraud claims as incontestable. 42 Still, despite these varied distinctions, a key functional similarity between a life insurance policy and a variable annuity with a GMDB remains: both products provide a death benefit, and if purchased by a stranger investor, can therefore be exploited to provide a significant monetary payout upon the death of an individual in whom the purchaser has no insurable interest. VII. Legal Distinctions Between Insurance and Annuities Before addressing whether insurable interest rules should apply to annuity products, it must be noted that courts have long recognized various legal similarities and distinctions between life insurance policies and variable annuities, and in various contexts. Courts have treated the two types of products differently for such varied purposes as to compel issuers of variable annuities to comply with securities laws, 43 to allow national banks to sell annuities, 44 or to address their tax treatment. 45 But as the Seventh Circuit noted after examining numerous cases and treatises addressing the similarities and differences between insurance and annuity products, [t]he most we can conclude from these long lists of cases and treatises is that annuities are not exactly insurance policies, but that the two have multiple similarities. Thus courts and treatise writers have stated that the two products are different in some situations, and the same in others. 46 The court then concluded that none of the cases or treatises authoritatively answers the question that we must decide. 47 While the issue before that court is not pertinent here, 48 it demonstrates that given the numerous similarities and differences between the two 44 NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1

5 types of products, any analysis of whether they should be treated similarly or differently depends entirely upon the nature of the legal issue being considered. Here, the salient question is whether insurable interest requirements should apply to both products. VIII. Public Policy Reasons for Requiring Insurable Interest for Variable Annuities A review of the historical development of the insurable interest requirement suggests that it should apply equally to variable annuities with GMDBs for the same reasons it applies to life insurance policies. The requirement was first imposed in eighteenth-century Great Britain in an effort to combat the so-called dead pools or death pools popular at the time, in which aristocratic gamblers wagered on when royals and other celebrities would die first. 49 Prior to 1750, the common law had only condemned wagers on human life when accompanied by a criminal act, such as murder to collect on a policy. 50 In the third quarter of the eighteenth century, however, gambling on human life began to be seen as an independent moral hazard, a concern plausibly related to growing unease over slavery and the concept of trafficking in the commerce of human lives. 51 Thus, Parliament enacted the Life Assurance Act in 1774, holding that any insurance policy made to benefit a person who had no interest in the life of the person insured would be deemed null and void. 52 This insurable interest requirement was reinforced in the common law of the United States as a matter of public policy. For example, the United States Supreme Court recognized this public policy requirement in 1881 in Warnock v. Davis, explaining that without such an interest, the contract is a mere wager, by which the party taking the policy is directly interested in the early death of the assured. Such policies have a tendency to create a desire for the event. 53 The Supreme Court reiterated the same concerns in Grigsby v. Russell, a 1911 opinion rendered by Justice Oliver Wendell Holmes: [a] contract of insurance upon a life in which the insured has no interest is a pure wager that gives the insured a sinister counter interest in having the life come to an end. 54 The very meaning of insurable interest, Justice Holmes explained, is an interest in having the life continue. 55 Recent court decisions addressing STOLI disputes have reiterated these principles in holding that modern statutes imposing insurable interest requirements are based on these fundamental public policy concerns. 56 Thus, although the insurable interest requirement has since been incorporated into the insurance codes of nearly every state, 57 the requirement is not a creature of statute. As the Supreme Court recognized in Warnock, the prohibition on the wagering on human lives is founded in public policy, independently of any statute on the subject. 58 This distinction is reflected in recent statutory amendments addressing STOLI cases, which are typically worded so as to reflect that insurable interest statutes recognize and apply pre-existing insurable interest requirements, which are based on public policy and common law. California s new 2009 legislation, for example, added a subsection providing that certain STOLI arrangements through the use of trusts or special purpose entities violate the insurable interest laws and the prohibition against wagering on life, 59 plainly recognizing and referring to pre-existing legal standards. Another provision in the same section, which existed both before and after the 2009 amendment, adds, [t]his section shall not be interpreted to define all instances in which an insurable interest exists. 60 In other words, the California legislature recognized that the contours of the insurable interest laws were incapable of being precisely defined by statute. To expect otherwise of state legislators is unreasonable, particularly in a modern world where investors continue to invent new and unanticipated ways to exploit human lives for profit. Thus, by specifically prohibiting certain STOLI practices in 2009, the California legislature was not trying to fix a pre-existing statutory loophole or create a new rule of law, but to confirm that a new, previously unforeseen type of transaction was of a nature that violated existing laws. When examining the scope of state laws on insurable interest, courts should therefore be mindful not only of pertinent statutes and case law, but also of the fundamental public policy interests underlying those statutes and judicial opinions. Such interests are implicated no differently by STATs than by STOLI policies, both of which are structured to provide a death benefit to a third-party investor who stands to gain financially from the death of a human being. The twin public policy rationales historically given for the insurable interest requirement prohibiting the morbid practice of gambling on human lives and eliminating a perverse incentive to commit murder (sometimes called the moral hazard rationale) have in some circles been attacked as no longer being compelling concerns in a modern world. 61 However, as demonstrated by the eagerness of modern legislatures to enact laws prohibiting STOLI practices, 62 modern societies do apparently continue to believe that wagers on human lives by disinterested investors still pose a legitimate threat to the public interest. 63 STAT cases create these same risks; indeed, at least one STAT plaintiff has alleged that the annuitant had voiced fears that STAT originators sought to kill her. 64 Although it may arguably be difficult to imagine a white-collar STAT investor carrying out or orchestrating a calculated killing for profit, the moral hazard public policy rationale has never targeted a specific demographic of suspected would-be murderers. Indeed, such temptations could theoretically be exacerbated in STAT cases, given the volatility of the stock market. One might imagine, for example, a sudden downturn decimating the investor s high-risk portfolio, and an urgent need for cash flow that a GMDB payout might provide. Although STAT annuitants are selected with the expectation that they will pass away soon, the uncertainty as to the timing of that passing may prove frustrating for NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1 45

6 an investor with substantial sums invested in a fluctuating market. A STAT investor might even have fewer qualms about orchestrating the carrying out of such a deed given the individual s terminal illness. The objective of the public policy is simply to eliminate such incentives that could conceivably result in disastrous consequences. Another public policy concern that supports an insurable interest requirement for STATs is their negative impact on the market itself. The other parties to a STAT investor s high-risk speculation do not know that the investor is not actually undertaking such risks, given its concealed knowledge of the GMDB safety net. Such conduct may expose the investor to liability to such third parties, and, as in Caramadre s case, may also invite investigation by the S.E.C. But it can also be seen as sufficiently damaging to the market to justify another public policy rationale for preventing STATs. The securities laws themselves, and related doctrines such as the fraud-on-the-market theory, are based on similar public policy concerns that the integrity of the securities markets requires a philosophy of full disclosure. 65 The imposition of an insurable interest requirement for STATs would be an effective way to reduce such risks. With the exception of this last proposal for a marketbased justification, the other public policy interests noted above are well-established and provide the basis for current statutes codifying insurable interest requirements. As examined below, these public policy concerns are not in conflict with such statutes. These concerns, however, were inexplicably ignored by the Rhode Island District Court in Conreal. IX. The Flawed Analysis in Conreal Conreal is the sole judicial opinion thus far addressing the applicability of the insurable interest requirement to stranger-originated variable annuities. The justification for that conclusion, however, is flawed in several respects. First, the court assumed that the insurable interest requirement only applied to products fitting statutory definitions of insurance. 66 The court presupposed that the sole basis for the requirement was statutory, citing a provision in the state insurance code prohibiting the procurement of an insurance contract without an insurable interest. 67 Thus, the court s entire discussion is framed exclusively within the limited confines of an analysis of whether annuities can be considered insurance products or as hybrid products under statutory definitions. 68 But the court did not seriously consider the possibility that other non-statutory bases for an insurable interest requirement existed based on common law and public policy. 69 The court did briefly examine state cases in seeking to differentiate annuities from life insurance, quoting an 1877 Rhode Island Supreme Court decision noting that other transactions resulting in speculation upon the chances of human life, such as when a man takes a transfer of an annuity, have not been held void. 70 But a transfer of an annuity is an entirely different type of transaction from a STAT. An annuity purchaser buys the right to receive annuity payments lasting as long as the duration of the annuitant s life, and thus has every hope that the annuitant stays alive. STAT originators, by contrast, set up the transaction from its inception so as to benefit the investor when the annuitant dies. Not until recently, and certainly not in 1877, could the Rhode Island Supreme Court have anticipated that annuities could be exploited in a manner which gave a stranger a contractual right to benefit from another s death. In fact, the Conreal court went out of its way to deliberately skirt the question regarding the pertinence of the moral hazard rationale. The court did briefly acknowledge the possibility that STATs may create a temptation to shorten life, 71 but did not go on to consider whether such a danger was of public concern. Instead, the court focused its discussion solely on a critique of the plaintiff insurers for their failure to ensure that their application procedures screened for insurable interest. 72 Thus, by censuring the insurers for the fact that they did not foresee how variable annuity products might be exploited by investors recruiting terminally ill annuitants, 73 the court sidestepped the more important question of whether there existed a valid public interest in eliminating an incentive to shorten life. Further, the Conreal opinion is based on a tenuous interpretation of the pertinent state statutes. It noted that the Rhode Island Insurance Code had separately defined the terms life insurance and annuities, 74 but failed to examine why that distinction mattered in the STAT context. As noted above, although treatises and cases alike conclude that the products are similar in numerous respects, various reasons exist for distinguishing between the two products in certain contexts, such as for purposes of taxation or securities registration. Thus, while many states define life insurance as including annuities, others, like Rhode Island, have defined the term differently. 75 The key question, then, is not whether annuities are insurance products, but whether certain rules historically applied to insurance policies should also apply to annuity contracts that have only recently begun to be used in a similar manner. There is no evidence that the Rhode Island General Assembly defined the terms life insurance and annuity for the purpose of excluding annuities from insurable interest requirements. The Conreal court, however, asserted that the General Assembly reinforced the statutory distinction between the two when it failed to mention annuities in the Life Settlements Act ( LSA ), which addressed STOLI practices. 76 But as noted above, 77 Rhode Island is but one of many states to recently enact STOLI legislation. Like many other states, the General Assembly based the LSA on a model act recommended by the National Conference of Insurance Legislators. 78 The model act and the LSA were both drafted well before STATs came to national attention in the past two years. Thus, it is likely that the omission of 46 NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1

7 any reference to STATs in the LSA was not a conscious exclusion, but a reflection of the fact that the legislature was simply unaware that variable annuities could similarly be exploited by stranger investors. Moreover, the language of the LSA itself again indicates that insurable interest legislation is designed to codify pre-existing insurable interest requirements. Like the California anti-stoli legislation cited above, Rhode Island s LSA provides that STOLI arrangements through the use of trusts violate insurable interest laws and the prohibition against wagering on life. 79 Thus, the statute sought to clarify that STOLI arrangements violate existing laws, not to announce that all other hitherto-unknown schemes to wager on human life were fair game. Further, even if it were true that the court was constrained by the statutory language to restrict insurable interest requirements to insurance or hybrid products, the court still erred in concluding that they were not hybrid products, contending that GMDBs merely sweeten the deal. 80 While that might be the case for non-stat annuities, where the purchaser expects the annuitant to live long enough to justify pursuing a traditional investment strategy, the GMDB is a fundamental component of a STAT transaction. By placing a wager on whether aggressive investments will turn a profit before a stranger dies, and putting the entire risk of loss on the insurance company, STAT promoters have certainly made the life insurance component of the scam more than a mere ancillary perk. 81 X. A Survey of State Laws Relating to Annuities and Insurable Interest Conreal is the sole judicial opinion thus far rendered that examines whether insurable interest requirements might apply to variable annuities. But even if later Rhode Island courts or statutes do not overrule or contradict its holding, Conreal does not necessarily spell disaster for insurers or annuitants wishing to declare STATs void under the laws of other states. An examination of other statutory schemes and related case law reveals that the framework underlying Conreal s conclusion is not at all typical, and that in each state, sufficient statutory or common-law authority may already exist to support contrary conclusions. Two considerations are important in this analysis. First, how states define the terms life insurance and annuities may or may not indicate whether the legislature intended that the latter should be treated as insurance products. Thirteen states, including California, 82 Colorado, 83 Florida, 84 Illinois, 85 Michigan, 86 Mississippi, 87 Nebraska, 88 New Mexico, 89 North Dakota, 90 South Carolina, 91 Tennessee, 92 Texas, 93 and West Virginia, 94 have statutes or case law that expressly define annuities as insurance products. Further, their rules relating to insurable interest do not seek to carve out annuities or other specific types of insurance products. 95 Nebraska even expressly includes annuity contracts in its insurable interest statute. 96 Other states are not quite as explicit as Nebraska which is not surprising, given the very recent advent of STATs but the fact that these thirteen states define annuities as insurance suggests that courts confronted with STAT disputes in those states would have little choice but to distinguish Conreal. But the second consideration in examining state statutes is far more important: regardless of whether a state legislature or court has chosen to define the products separately, the language of the state s insurable interest laws may already be broad enough to cover annuities. Many states do not expressly define annuities as insurance, and sometimes even define them as separate products, but their insurance codes still make clear that insurable interest requirements apply to annuities. For example, New Jersey s insurable interest statute, like Nebraska s, explicitly applies to annuities 97 even though the code elsewhere defines them as separate from insurance products. 98 In other states, it is clear from the structure of the code that the insurable interest requirement applies to annuities. For example, Arizona s insurance code provides, [e]xcept as exemption or other provision is made, all provisions in this title applicable to life insurance shall be deemed applicable also to annuities. 99 That title includes an insurable interest statute that does not make any exemption or other provision excluding annuities from the requirement. 100 This type of statutory framework is especially common. Eighteen states, including Alabama, 101 Alaska, 102 Arizona, 103 Arkansas, 104 Delaware, 105 Georgia, 106 Idaho, 107 Indiana, 108 Kentucky, 109 Louisiana, 110 Maine, 111 Maryland, 112 Nevada, 113 New Jersey, 114 Oklahoma, 115 South Dakota, 116 Utah, 117 and Wyoming, 118 similarly have enacted statutes that either expressly state, or whose structure and placement in the code imply, that annuities are subject to the same insurable interest requirements as life insurance policies. Altogether, this review indicates that thirty-one of the fifty states either expressly define annuities as insurance products or otherwise indicate that insurable interest requirements apply to annuities. In each of these states, strong arguments could be made that insurable interest requirements already apply to STATs under existing law. Such arguments might also be made as to some variable annuities in Hawaii and Washington, which have developed an interesting approach to the definitional question that is of direct relevance to STATs. Both states have enacted statutes providing that whether life insurance rules apply to annuities depends on the nature of the death benefit. If the GMDB is not in excess of the greater of the sum of the premiums or stipulated payments paid under the contract or the value of the contract at time of death, the provision shall not be deemed to be life insurance and therefore not subject to the provisions of this code governing life insurance carriers. 119 But [a] provision for any other benefit on death during the deferred period shall be subject to such insurance provisions. 120 Presumably, that would include being subject to insurable interest laws. 121 Thus, in these states, a STAT that is limited to a standard GMDB NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1 47

8 One other potential argument relating to valid contract formation is also worth discussing, that there was no meeting of the minds between the owner and the insurer. In other words, the insurer might contend that there was a mistake of fact that the insurer reasonably believed that the selected annuitant was a typical, self-selecting individual whose life expectancy would be of sufficient duration to justify the long-term investment strategy ordinarily expected of the variable annuity product. Mistake arguments, however, have historically been rejected in cases involving annuitants whose health problems were unallowing it to pursue risk-free investment, with a safety net promising only a premium refund, would arguably not be subject to insurable interest requirements, whereas a STAT with an enhanced or stepped-up death benefit, such as the lock in, anniversary ratchet, or roll-up options described above, would more clearly run afoul of insurable interest requirements. Insurers seeking to rescind STATs in the remaining seventeen states will have to deal with a variety of statutes and cases or, in some states, an absence thereof that may make it more difficult to establish that insurable interest is required for variable annuities. Eight of these states including Connecticut, 122 Minnesota, 123 Missouri, 124 Montana, 125 New York, 126 North Carolina, 127 Vermont, 128 and of course, Rhode Island present a statutory framework similar to that considered in Conreal. In those states, statutes define annuities as separate products from life insurance, but do not explicitly speak to the issue of whether insurable interest laws apply to those separately defined annuities. But again, that fact does not necessarily suggest that the legislatures in those seventeen states meant to exclude STATs. Rather, it suggests only that those legislatures have not yet been confronted with the possibility that variable annuities might be exploited by strangers lacking insurable interests in the lives of terminally ill annuitants. 129 Four other states, including Massachusetts, 130 Oregon, 131 Virginia, 132 and Wisconsin, 133 have insurable interest statutes whose phrasing or placement in the code suggests that the legislature did not intend them to apply to annuities. And finally, as to the last five states Iowa, 134 Kansas, 135 New Hampshire, 136 Ohio, 137 and Pennsylvania 138 the statutory framework and case law do not provide a concrete answer. While this review does not exhaustively examine every potentially pertinent statute or case in each state, it at least suggests that Conreal should not necessarily be viewed as a dangerous precedent or as an invitation to STAT promoters to target other markets. Because Rhode Island s statutory scheme is unlike those of most other states, Conreal is easily distinguishable. 139 XI. Other Potential Issues in STAT Disputes Even if a STAT dispute does not result in judicial rescission of the annuity contract on insurable interest grounds, other potential arguments might be made by insurers seeking to recover market losses paid to the investors in the form of GMDBs, such as by bringing causes of action for fraud or material misrepresentations. The annuity contract s contestability clause may bar such claims against the contract owner. However, courts may, as in Conreal, still allow insurers to seek fraud damages from the other various sponsors, agents, and collaborators in STAT schemes. 140 An insurer might also claim that conduct by participating agents breached brokerage service agreements with the company, 141 or a covenant of good faith and fair dealing implied in such contracts. 142 STAT promoters might also be subject to criminal liability and potential civil actions relating thereto, such as for forging annuitant signatures, 143 paying money in exchange for such signatures, 144 or insurance fraud. 145 Insurance companies should be well-prepared for the possibility that courts and juries may be skeptical of insurers claims because of companies failure to eliminate the potential risks of STATs. Insurers draft the annuity applications, contracts, and prospectuses. They do not request additional information or engage in thorough underwriting before issuing a variable annuity. They control the assumptions used to set prices for the annuity fees, and have decided that the annuitant s health is not a relevant factor. Yet, none of these arguments should have any impact on whether a court is willing to enforce the public policy that is part and parcel of an insurable interest analysis. Further, insurers might contend that they had no way of knowing that their annuity products would be exploited in this manner, and that their business decisions regarding the degree of underwriting needed were reasonable in light of historically low mortality rates for annuity applicants. Even Conreal, after condemning the insurers for their lack of foresight in declining to recognize an insurable interest requirement, 146 still allowed the insurers to proceed with their fraud claims against the non-owner defendants despite their not having specifically asked for the information withheld. 147 Conreal also acknowledged additional arguments for voiding the contracts that, like insurable interest, could rope the owners back into the lawsuits despite the contestability clauses. 148 The plaintiff insurers raised arguments that the contracts might be void due to forgery of the annuitant s signatures and fraud in the factum, based on the theory that the annuitants were tricked into signing without knowing the contracts true nature or contents. The court declined to address the merits of such arguments, noting that the complaints had failed to adequately plead such claims, but it did grant them leave to amend. 149 Importantly, the court recognized that such forgery or fraud in the factum could render the annuity contracts void and not merely voidable, thus depriving the owners of their incontestability defense because the pertinent clauses never would have come into effect. 150 Thus, depending on the facts of a particular STAT case, such arguments could certainly be made to suggest that the annuity contracts were not validly formed and should be held void. 48 NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1

9 known at the time of the annuity purchase. 151 Such cases might theoretically be distinguished based on the fact that they were mutual mistake cases brought by unknowingly ill annuitants, 152 while STATs involve a unilateral mistake on the insurer s part. But the problem with a unilateral mistake argument, again, is the insurer s typical decision not to inquire as to the annuitant s health. The Restatement of Contracts, for example, holds that the mistake of one party makes a contract voidable only when the mistaken party does not bear the risk of the mistake. 153 It further explains that a party does bear the risk of a mistake and thus, is not entitled to rescission if he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient. 154 An insurer invoking the meeting of the minds argument should be prepared to address these considerations. In sum, various remedies might be sought from collaborators in STAT schemes. Insurers may even in some cases be able to establish that the contracts should be held void for fraud vis-à-vis the annuitant. But if the annuitant did participate knowingly, or there is not enough evidence to prove otherwise, rescission of a STAT contract will likely hinge on whether the insurable interest requirement applies to variable annuities under applicable state laws. XII. Conclusion STAT investors exploit a practical loophole in the variable annuity product, but it is far from clear whether there exists a legal loophole making such exploitation lawful. To address the former, insurance companies should consider whether it still makes business sense to continue to engage in limited underwriting of annuity applications, and whether contestability clauses in their annuity contracts should be revised. With respect to the latter, however, it is not yet clear how legislatures and courts will address the issue. Insurable interest requirements at common law and based upon public policy concerns may, depending on the laws of the pertinent jurisdiction, arguably already prohibit any stranger-originated contracts that enable the stranger to benefit from the death of another human being. Insurers may also pursue a number of other arguments if considering legal actions against the STAT originators and agents, but rescission of the annuity contracts will in many cases hinge on how courts choose to interpret the scope of existing insurable interest laws. Endnotes 1. Also sometimes referred to as Stranger-Originated Annuities ( STOAs ) or Stranger Originated Life Annuities ( STOLAs or STOAs ). 2. Variable annuities are regulated by the Securities and Exchange Commission, whereas fixed annuities are not considered securities and are therefore not regulated by the SEC. See Annuities, U.S. SECURITIES AND EXCHANGE COMMISSION, answers/annuity.htm (last visited Mar. 24, 2012).http://www.sec. gov/answers/annuity.htm. 3. See Variable Annuities: What You Should Know, U.S. SECURITIES AND EXCHANGE COMMISSION, varannty.htm#vch (last visited Mar. 24, 2012). investor/pubs/varannty.htm#vch. 4. See 26 U.S.C. 72 (2012). 5. Insurers may, for example, offer various guaranteed lifetime benefits for an additional charge, such as a guaranteed minimum income benefit ( GMIB ) promising a minimum income stream during the payout phase, or a guaranteed minimum accumulation benefit ( GMAB ) pursuant to which after a set period of time (usually 10 or 20 years), the account s value may be reset to a guaranteed accumulation amount. Insurers also sometimes offer bonus credit features, such as a promise to add a bonus contribution to the accumulated value based on a specified percentage of purchase payments, typically ranging from 1% to 5%. 6. Also referred to as Investor-Owned or Stranger-Owned Life Insurance ( SOLI or IOLI ). 7. See Life Prod. Clearing House, LLC v. Angel, 530 F. Supp. 2d 646, 649 (S.D.N.Y. 2008) (describing a STOLI scheme whereby policy was owned by an irrevocable trust and the insured, who had initially named himself as trust beneficiary, sold his beneficial interest to a funding third-party investor shortly after policy issuance). 8. See Lincoln Nat. Life Ins. Co. v. Calhoun, 596 F. Supp. 2d 882, 885 (D.N.J. 2009) (describing a typical STOLI transaction as involving an up-front cash payment in exchange for a promise of a future sale of the policy, use of a trust to hold the policy, and funding of premiums through non-recourse premium financing). 9. See, e.g., Settlement Funding, LLC v. AXA Equitable Life Ins. Co., No. 06 CV 5743, 2010 WL , at *1 (S.D.N.Y. Sept. 30, 2010) (describing a STOLI policy on life of elderly insured that was based on an application claiming that she had a net worth in excess of $12 million, even though she lived in an apartment and had assets of less than $100,000). 10. See, e.g., id. (explaining that evidence showed that the insured s signature was forged on a trust agreement, and that insured was not in the same state as where the agreement was purportedly signed, and notary had never met the insured or notarized the trust agreement). 11. Warnock v. Davis, 104 U.S. 775, 779 (1881) (explaining that the insurable interest requirement was a matter of public policy to avoid the issuance of life insurance where the party taking the policy has a direct interest in the early death of the assured). 12. Cal. INS. CODE (g)(1)(B) (West 2010). 13. Id (w) ( Trusts that are created to give the appearance of insurable interest and that are used to initiate policies for investors violate insurable interest laws and the prohibition against wagering on life. ); see also id (e) (same). 14. At least twenty-seven states thus far have enacted statutes specifically defining and prohibiting STOLI practices, nearly all since 2008, including Arizona, Arkansas, California, Connecticut, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Minnesota, New Hampshire, New York, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Washington, West Virgina, and Wisconsin. See ARIZ. REV. STAT. ANN (2012) (prohibiting STOLI); ARK. CODE ANN (24) (2011) (defining STOLI as an unlawful practice); CAL. INS. CODE (g)(1)(B) and (w) (West 2012) (describing STOLI as fraudulent life settlement act); CONN. GEN. STAT. 38a-465 (2012) (defining STOLI) and 38a-465j (stating that entry into any practice or plan that involves STOLI constitutes fraud); GA. CODE ANN (24) (2011) (defining STOLI as unlawful practice); HAW. REV. STAT. ANN. 431E-2 (defining STOLI) and 431E-24 (prohibiting entering into any practice or plan that involves STOLI); IDAHO CODE ANN (15) (2012) (defining STOLI) and (1) (prohibiting any act that constitutes or promotes STOLI); 215 ILL. COMP. STAT. 159/5 (2011) (defining STOLI), 215 ILL. COMP. STAT. 159/50 (2011) (prohibiting entering into STOLI) and ILL. COMP. STAT. 159/72 (2011) (explaining that crime of life settlement fraud includes entering into NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1 49

11 37. See, e.g., CAL. INS. CODE (West 2012); FLA. STAT (2012); 215 ILL. COMP. STAT. 5/224(c) (2011); N.Y. INS. LAW 3203(a)(3) (McKinney 2011); TEX. INS. CODE ANN (a) (West 2011). 38. See, e.g., ALA. CODE (2012); FLA. STAT (2012). 39. For example, the Rhode Island STATs cases all appear to have involved contracts providing that they were incontestable from the policy date. See W. Reserve Life Assur. Co. of Ohio v. Conreal LLC, 715 F. Supp. 2d 270, 280 (D.R.I. 2010), on reconsideration in part sub nom. W. Reserve Life Assur. Co. of Ohio v. Caramadre, No. CA S, 2012 WL (D.R.I. Feb. 7, 2012). 40. Conreal, 715 F. Supp. 2d at Id. at Insurable interest claims, however, would in most states survive the contract s contestability period. Most state laws provide, at least in the insurance context, that insurable interest is an issue that goes to contract formation, rendering the contract void ab initio, and thus may be raised at any time regardless of any contestability clause therein. See 17 Couch on Ins. 240:82 (3d ed. 2011) ( The majority of jurisdictions follow the view that an incontestable clause does not prohibit insurers from resisting payment on the ground that the policy was issued to one having no insurable interest such a defense may be raised despite the fact that the period of contestability has expired. ). 43. See Sec. & Exch. Comm n v. Variable Annuity Life Ins. Co. of Am., 359 U.S. 65, 79 S. Ct. 618, 3 L. Ed. 2d 640 (1959) (discussing the differences between life insurance and variable annuities and concluding that the latter had to be registered under the Securities Act of 1933). Interestingly, a key reason for the Supreme Court s conclusion was its understanding that a variable annuity places all of the investment risk on the annuitant, none on the company. The companies that issue these annuities take the risk of failure. But they guarantee nothing to the annuitant except an interest in a portfolio of common stocks or other equities an interest that has a ceiling but no floor. Id. at 71 72, 79 S. Ct. at 622. STATs, however, do not follow these conventions; the investor is guaranteed a floor in the form of a GMDB, and the insurer is misled into unwittingly assuming all of the risks in the investment portfolio. 44. NationsBank of N. Carolina, N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 255, S. Ct. 810, 813, 817, 130 L. Ed. 2d 740 (1995) (noting various similarities and distinctions between annuities and insurance and deferring to the Comptroller of the Currency s decision to treat them as distinct products for purposes of the National Bank Act, noting that his conclusion was at least reasonable ). 45. Helvering v. Le Gierse, 312 U.S. 531, 539, 61 S. Ct. 646, 649, 85 L. Ed. 996 (1941) (focusing on the differences between insurance risks and investment risks in examining estate tax dispute). 46. Am. Deposit Corp. v. Schacht, 84 F.3d 834, 840 n. 4 (7th Cir. 1996). 47. Id. 48. Id. (examining the specific question as to whether annuities should be considered to be insurance for purposes of the McCarran Ferguson Act). 49. See Timothy Alborn, A License to Bet: Life Insurance and the Gambling Act in the British Courts, 14 Conn. Ins. L.J. 1, 1 2 (2007). 50. Id. at Id. (citing GEOFFREY CLARK, BETTING ON LIVES: THE CULTURE OF LIFE INSURANCE IN ENGLAND , (Manchester University Press 1999). 52. Life Assurance Act, 1774, 14 Geo. 3, c. 48, 1 (Eng.) (also known as the Gambling Act of 1774 ). 53. Warnock v. Davis, 104 U.S. 775, 779, 26 L. Ed. 924 (1881). 54. Grigsby v. Russell, 222 U.S. 149, , 32 S. Ct. 58, 58, 56 L. Ed. 133 (1911) (adding, [a]lthough that counter interest always exists, the chance that in some cases it may prove a sufficient motive for crime is greatly enhanced if the whole world of the unscrupulous are free to bet on what life they choose ). Id. at Id. Warnock and Grigsby also address a key issue more applicable to STOLI policies than to STATs, namely the alienation of the contract to one with no insurable interest. While Warnock invalidated an assignment of ninety percent of a policy s proceeds executed contemporaneously with the application for the policy (104 U.S. at , 26 L. Ed. at 924), Grigsby clarified that a lack of insurable interest on the part of a prospective assignee does not bar the sale of an in-force life insurance policy. Grigsby, 222 U.S. at , 32 S. Ct. at 58. Grigsby clarified that this freedom to alienate only applies to policies that are issued with a valid insurable interest in the first instance and there is no pre-existing agreement to assign, noting an important distinction: [a]nd cases in which a person having an interest lends himself to one without any, as a cloak to what is, in its inception, a wager, have no similarity to those where an honest contract is sold in good faith. Id. at 156, 32 S. Ct. at 59. While assignment or some other method of alienation is frequently a key component of a STOLI transaction, however, STATs often involve no alienation at all. The application typically just names the thirdparty investor as owner and beneficiary, and the annuitant signs the application as the annuitant only. See, e.g., Conreal, 2010 WL , at * See, e.g., Life Prod. Clearing, LLC v. Angel, 530 F. Supp. 2d 646, (S.D.N.Y 2008) (analyzing rationales given in Warnock and Grigsby as well as a December 19, 2005 opinion by the Office of General Counsel on behalf of the New York State Insurance Department noting that STOLI activities seeking to procure a policy solely as a speculative investment for the ultimate benefit of a disinterested third party [are] contrary to the long established public policy against gaming through life insurance purchases. ); Lincoln Nat. Life Ins. Co. v. Schwarz, CIV.A FLW, 2010 WL , *7 (D.N.J. Aug. 18, 2010); Lincoln Nat. Life Ins. Co. v. Calhoun, 596 F. Supp. 2d 882, (D.N.J 2009). 57. See discussion infra Part X. 58. Warnock, 104 U.S. at 779, 26 L. Ed. 924; see also Schwartz, 2010 WL , at *7 (citing Warnock and holding that the original public policy interest in precluding insurance absent an insurable interest is the law in New York ). 59. CAL. INS. CODE (d) (2012). 60. CAL. INS. CODE (i) (prior to 2009, codified at (g)). 61. See, e.g., Roy Kreitner, Speculations of Contract, or How Contract Law Stopped Worrying and Learned to Love Risk, 100 COLUM. L. REV. 1096, 1123 (2000) (arguing that the gambling rationale has been only paid lip service in court decisions like Grigsby, and that courts instead relied more heavily on the moral hazard concern implicated by an incentive to hasten another s death); Jacob Loshin, Insurance Law s Hapless Busybody: A Case Against the Insurable Interest Requirement, 117 YALE L.J. 474, (2007) (arguing that even the moral hazard rationale is too imprecise to justify an insurable interest requirement). 62. See supra note Indeed, at least one recent case suggests that the moral hazard concern is not just paranoia of the past. In September 2008, 74-yearold Germaine Tomlinson was mysteriously found drowned in her bathtub in Indiana, fully clothed and wearing high heels. The last person to see her alive was her son-in-law, the beneficiary of a $15 million insurance policy on her life, who had been with Ms. Tomlinson at a bar the night of her death, drove her home, and escorted her into the house. Police first concluded that the death was accidental, but reopened their investigation after learning that Ms. Tomlinson died the day before her son-in-law s deadline to either repay a $1.3 million loan he had taken out to finance the policy premiums or risk surrendering the policy to the lender. See Mark Maremont & Leslie Scism, Inquiry Into Death in Indiana Reopened, WALL. ST. J. (May 13, 2010). Police were unable to find clear evidence of foul play, but courts are allowing civil suits to proceed. See Drama Builds in Suit Over Hilbert Mother-in-Law s Life Policy, INDIANAPOLIS BUS. J. (Nov. 6, 2010). 64. See, e.g., Complaint filed in the First Judicial Circuit, Cook County in Illinois State Court, Pratt v. Flowers et al., Civ. No L , NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1 51

12 at (alleging that annuitant had stated her fear that these people are trying to kill me ). 65. Tad E. Thompson, Messin with Texas: How the Fifth Circuit s Decision in Oscar Private Equity Misinterprets the Fraud-on-the-Market Theory, 86 N.C. L. REV. 1086, 1093 (2008) (discussing public policy interests underlying Rule 10b-5 and the fraud-on-the-market theory) (quoting Basic Inc. v. Levinson, 485 U.S. 224, 230, 108 S. Ct. 978, 983, 99 L. Ed. 2d 194 (1988)). 66. W. Reserve Life Assur. Co. of Ohio v. Conreal LLC, 715 F. Supp. 2d 270, 276 (D.R.I. 2010), on reconsideration in part sub nom., W. Reserve Life Assur. Co. of Ohio v. Caramadre, No. CA S, 2012 WL (D.R.I. Feb. 7, 2012). 67. Id. (citing R.I. GEN. LAWS (a)). 68. Id. at The court even quoted language from an older Rhode Island case that arguably supported a common-law argument for applying the doctrine outside the context of insurance, holding that a purely speculative contract on the life of another is...objectionable on the grounds of public policy. Id. at 276 (quoting Cronin v. Vt. Life Ins. Co., 20 R.I. 570, 570, 40 A. 497, 497 (1898)). This language, unlike the statute cited above, is not constrained to life insurance contracts. 70. Conreal, 715 F. Supp. 2d at 278 (citing Clark v. Allen, 11 R.I. 439, 444, 1877 WL 4932, at *4 (1877)). 71. Id. at 279 (quoting Cronin, 40 A. at 497). 72. Id. 73. Id. at 274. Interestingly, the court also appeared to recognize that these novel schemes were unanticipated, describing Caramadre as having discovered a loophole in the product itself, and describing his strategy as based on his insight regarding how the product could be exploited. Id. at 273. The court later described the STAT originators as having figured out how to game a flaw in the product. Id. at 278. The court almost appeared to be praising Caramadre for his ingenuity, but condemning the insurers for failing to come to the same realization first. 74. Id. at (citing R.I. GEN. LAWS ). 75. See infra notes and accompanying text. 76. Conreal, at 277 (referring TO R.I. GEN. LAWS ). 77. See supra note Trevor Thomas, Rhode Island Enacts Settlements Law, NATIONAL UNDERWRITER (Nov. 11, 2009), lifeandhealthinsurancenews.com/news/2009/11/pages/rhode- Island-Enacts-Settlements-Law.aspx. 79. R.I. GEN. LAWS (26) (2011). 80. Conreal, 715 F. Supp.2d at Id. at CAL. INS. CODE 101 (2012) ( Life insurance includes insurance upon the lives of persons or appertaining thereto, and the granting, purchasing, or disposing of annuities. ). 83. COLO. REV. STAT (2012) ( Insurance means a contract whereby one, for consideration, undertakes to indemnify another or to pay a specified or ascertainable amount or benefit upon determinable risk contingencies, and includes annuities. ). 84. FLA. STAT (1) (2012) ( The transaction of life insurance includes also the granting of annuity contracts, including, but not limited to, fixed or variable annuity contracts. ) ILL. COMP. STAT. 5/4(2011). ( classes of insurance Life. Insurance on the lives of persons and every insurance appertaining thereto or connected therewith and granting, purchasing or disposing of annuities. ). 86. MICH. COMP. LAWS (1) (2012) ( Life insurance is insurance upon the lives and health of persons and every insurance pertaining thereto, and to grant, purchase, or dispose of annuities. ). 87. Hamilton v. Penn Mut. Life Ins. Co., 17 So. 2d 278, 280 (1944) (annuities not technically life insurance policies but are subject to provisions of insurance code regulating life insurance); State ex rel. Gully v. Mut. Life Ins. Co. of New York, 196 So. 796, 799 (1940), overruled in part on other grounds, 198 So. 763 (1940). 88. NEB. REV. STAT (2011) (requiring benefits of any policy of insurance to be payable to person with insurable interest in person s life, and expressly providing that the term policy of insurance includes annuity contracts). 89. N.M. STAT. ANN. 59A-7-2 (2011) ( Life insurance is insurance of human lives and every insurance appertaining thereto, and the granting, purchasing or disposing of annuities. ). 90. N.D. CENT. CODE (2011) (stating that variable annuities categorized along with variable life insurance contracts as insurance coverage ) and (stating variable annuities categorized along with variable life insurance contracts as insurance coverage ); N.D. Cent. Code (2) (2011) (containing a definitions section relating to annuities including definitions referring to insurance, including annuities and insurance products, including annuities. ). 91. S.C. CODE ANN (25) (2012) ( The term insurance includes annuities. ). 92. TENN. CODE ANN (2012) ( For the purposes of this title, the transacting of life insurance includes the granting of annuities, both with and without a life or mortality contingency or element. ); see also H & R Block E. Tax Services, Inc. v. State, Dept. of Commerce & Ins., Div. of Ins., 267 S.W.3d 848, 858 (Tenn. Ct. App. 2008) (noting that statutory definitions of contract of insurance and insurable interest were circular and ambiguous, and that the broad definition could cover various types of contracts). 93. TEX. INS. CODE ANN (2011) (defining insurance policy as including annuity contracts). 94. W. VA. CODE (2012) ( Life insurance. Life insurance is insurance on human lives including endowment benefits, additional benefits in the event of death or dismemberment by accident or accidental means, additional benefits for disability and annuities. ). 95. See, e.g., CAL. INS. CODE (2012) (stating that the insurable interest requirement does not carve out annuities); FLA. STAT (2012) (stating that the insurable interest requirement does not carve out annuities); MICH. COMP. LAWS (2012) (stating that the insurable interest requirement does not carve out annuities); N.M. STAT. ANN. 59A-18-4 and 59A-18-5 (2011) (setting forth insurable interest requirements) and 59A-18-1 (chapter applies as to all insurance policies and annuity contracts); TEX. INS. CODE ANN (2011) (subchapter relating to insurable interest for life insurance policies shall be liberally construed to implement the purposes of this subchapter ); W. VA. CODE (2012) (insurable interest statute with no carve-out for annuities). 96. NEB. REV. STAT (2011). 97. N.J. STAT. ANN. 17B: (2011) (setting forth insurable interest requirement and providing that it applies to life insurance, health insurance and annuities). 98. N.J. STAT. ANN. 17B:17-5 (2011) (defining annuity and noting that a contract that includes life insurance death benefits is still deemed to be an annuity if such extra benefits constitute a subsidiary or incidental part of the entire contract ). 99. ARIZ. REV. STAT. ANN (2012) ARIZ. REV. STAT. ANN (2012); see also (clarifying scope of article that includes insurable interest requirement and excluding certain products, but not annuities) ALA. CODE (2012) ( [T]his chapter applies as to all insurance contracts and annuity contracts. ) and (stating insurable interest requirement without any carveout for annuities). Alabama thus makes its insurable interest requirement applicable to annuities even though it defines them as separate products elsewhere in the code. ALA. CODE (defining annuity as a separate type of contract from a life insurance policy as defined in , and noting that a contract that includes certain life insurance death benefits is still deemed to be an annuity if such extra benefits constitute a subsidiary or incidental part of the entire contract ). 52 NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1

13 102. ALASKA STAT (2012) (defining insurable interest requirement as referring to life, annuity, or health insurance ) See supra note ARK. CODE ANN (2011) (defining insurable interest requirement) and (clarifying scope of chapter and excluding certain products, but not annuities) DEL. CODE ANN. tit. 18, 2701 (2011) ( This chapter applies to all insurance contracts and annuity contracts. ) and 2704 (stating that the insurable interest requirement does not carve-out for annuities) GA. CODE ANN (2011) (defining insurable interest requirement) and (clarifying scope of chapter and excluding certain products, but not annuities) IDAHO CODE ANN (2012) (defining insurable interest requirement) and (chapter of code applies as to all insurance contracts and annuity contracts ) IND. CODE (2011) (insurable interest law applies to annuities in context of requiring producer to have an insurable interest in life of annuitant in order to have an interest therein); In re Estate of Powers, 849 N.E.2d 1212 (Ind. Ct. App. 2006) (same) KY. REV. STAT. ANN (West 2011) (defining insurable interest requirement) and (subtitle in code applies to annuities as well as life insurance). Like Alabama, Kentucky has this framework despite explicitly defining annuities as separate products from life insurance. See KY. REV. STAT. ANN., LA. REV. STAT. ANN. 22:914 (2011) (defining provisions of insurance code apply to variable annuity contracts) and 22:901 (defining insurable interest requirement); see also Bulletin issued by the state insurance department taking the position that STATs would violate insurable interest laws, supra note ME. REV. STAT. tit. 24-A, 2404 (2011) (defining insurable interest requirement) and 2401 ( applies as to all insurance contracts and annuity contracts ). Maine has this framework despite some arguable inconsistencies in its code relating to whether annuities are deemed insurance products. Compare ME. REV. STAT. tit. 24-A, 3 (defining insurance broadly to include annuities) with ME. REV. STAT. tit. 24-A, 703 (defining annuity as a separate type of contract from a life insurance policy per 702) MD. CODE. ANN., INS (West 2012) (defining insurable interest requirement) and (article applies to insurance and annuity contracts). This framework applies even though annuities are not defined in the code as life insurance products. MD. CODE ANN., INS (d)(3) (defining annuity as providing that it does not include life insurance ); see also Matthews v. Matthews, 647 A.2d 812, 817 (1994) (holding that annuity contracts are not technically life insurance) NEV. REV. STAT. 687B.040 (2010) (defining insurable interest requirement) and 687B.010 (explaining that the scope of chapter of code applies to all insurance contracts and annuity contracts ). The statutes so provide despite having defined annuities as separate from insurance. See NEV. REV. STAT. 688A See supra note OKLA. STAT. tit. 36, 3604 (2011) (defining insurable interest requirement) and 3601 (clarifying scope of chapter and excluding certain products, but not annuities); see also Baird v. Wainwright, 260 P.2d 1060, 1064 (1953) (stating that where annuity certificate provided a monthly annuity for insured during his lifetime, and at his death if aggregate of annuities was less than the premium paid the difference was payable to the beneficiary named in the policy, the contract was a combination life and annuity policy authorized to be executed by an insurance company) S.D. CODIFIED LAWS (2011) (defining insurable interest requirement) and ( Chapters to 58-12, inclusive, apply as to all insurance contracts and annuity contracts ) UTAH CODE ANN. 31A (2012) (defining insurable interest requirement) and 31A (defining scope of chapter and not carving out annuities); see also UTAH CODE ANN. 31A (2012) (including various definitions of terms that include annuities, including business of life insurance and insurance business ); but see In re Estate of Clark, 10 Utah 2d 427, 434, 354 P.2d 112, 117 (1960) (analyzing statutory definitions of life insurance and annuities in context of tax dispute, and holding, We find nothing in these sections to justify the claim that an annuity contract such as herein involved should be classified as life insurance either for the purpose of estate tax or otherwise. ) WYO. STAT. ANN (2012) (setting forth insurable interest requirement) and (2012) ( This chapter applies to all insurance contracts and annuity contracts ) HAW. REV. STAT. ANN. 431:10D-118 (LexisNexis 2012); see also, WASH. REV. CODE ANN A.030 (LexisNexis 2012) HAW. REV. STAT. ANN. 431:10D-118 (LexisNexis 2012) (emphasis added); see also WASH. REV. CODE ANN A.030 (LexisNexis 2012) E.g., WASH. REV. CODE ANN (LexisNexis 2012) (imposing insurable interest statute as applying to life insurance) CONN. GEN. STAT. ANN. 38a-1 (West 2012) (defining annuities and stating, This definition does not apply to payments made under a policy of life insurance ) MINN. STAT. ANN. 61A.021 (West 2012) (sale of life insurance and annuity as a single product, e.g. with a rider or otherwise, expressly prohibited in Minnesota) MO. ANN. STAT (10) (West 2012) (where annuity contracts also provide death benefits by rider, the annuity and life insurance portions of the benefits shall be calculated separately as though by a separate contract); see also Carroll v. Equitable Life Assur. Soc. of U.S., 9 F. Supp. 223, 224 (W.D. Mo. 1934) (emphasizing distinct characteristics between annuities and life insurance contracts) MONT. CODE ANN (2012) (defining life insurance without referencing annuities); see also Estate of Miles v. Miles, 298 Mont. 312, 320, 994 P.2d 1139, 1144 (2000) (analyzing code in detail and noting that legislature could have, but did not, define annuities as life insurance or provided that they should be similarly treated) N.Y. INS. LAW 1113(a)(1) and (2) (McKinney s 2012) (defining annuities and life insurance policies as separate types of contracts); see also N.Y. INS. LAW 3205 (insurable interest requirement only refers to life insurance contracts) N.C. GEN. STAT. ANN (defining life insurance and annuities as separate products); see also N.C. GEN. STAT. ANN through (statutes relating to insurable interest without speaking to which types of contracts require such an interest) VT. STAT. ANN. tit. 8, 3717 (an annuity with death benefits of the kind provided by life insurance shall nevertheless be deemed to be an annuity if such extra benefits constitute a subsidiary or incidental part of the entire contract ) As argued above, if these states later enact legislation making insurable interest a requirement for annuities, such enactments would arguably not reflect a change to state law, but a recognition that STATs violate existing common-law and public policy grounds prohibiting the procurement of contracts by total strangers who stand to gain from another s death MASS. GEN. LAWS ANN. ch. 175, 123 (West 2012) (section requiring assent of insured not applicable to contracts based upon the continuance of life, such as annuity or pure endowment contract ) OR. REV. STAT. ANN (West 2012) (setting forth insurable interest requirement for personal insurance but then stating, [T]his section does not apply to annuity policies. ). This statute does so despite the fact that the Oregon code defines insurance to include annuities. OR. REV. STAT. ANN (West 2012) ( Insurance so defined includes annuities. ); OR. REV. STAT. ANN (West 2012) ( For convenience, reference to life insurance in the Insurance Code includes life insurance as defined in subsection (1) of this section and annuities as defined in ORS , except if the inclusion of annuities obviously is inapplicable or if the context requires, or the Insurance Code provides, otherwise. ). NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1 53

14 132. VA. CODE ANN (West 2012) (setting forth insurable interest requirement) and (chapter does not apply to annuities). This carve-out for annuities is made despite the fact that other statutes define annuities as insurance. See VA. CODE ANN (West 2012) ( Life insurance includes annuities. ) and ( Insurance policy or insurance contract includes annuities. ) WIS. STAT. ANN (West 2012) (chapters addressing life insurance, which include provisions relating to insurable interest, do not apply to annuities ) See, e.g., Hult v. Home Life Ins. Co. of New York, 213 Iowa 890, 240 N.W. 218 (1932) ( a life insurance contract must be based upon an insurable interest, in the absence of which it becomes a wager contract ). Hult involved claims by an executor seeking to rescind annuity contracts that the deceased had purchased on her own life. Although the court declined to apply the insurable interest rule to rescind the contracts at bar, its rationale for doing so arguably suggests that it would have reached a different result in a STAT case: If a person takes out a life insurance policy on the life of one in whom he has no insurable interest, there are three parties involved: First, the party who procures the insurance; second, the insurance company; third, the party insured. Not so in this case. Here there are but the two parties, the one to whom the contract runs and the insurance company, which makes the contract. There is here no disinterested third party, whether viewed as an annuity contract or an insurance contract. Id. (emphasis added) Kansas has a statute prohibiting a life insurance contract without insurable interest (KAN. STAT. ANN (2012)), but the insurance code does not purport to define that term or to distinguish it from annuity contracts New Hampshire law requires insurable interest for a policy of life or endowment insurance (N.H. REV. STAT. ANN. 408:2 (2012)), but the insurance code does not define that term or distinguish it from annuity contracts. But see Frederick v. Frederick, 141 N.H. 530, 533, 687 A.2d 711, 714 (1996) (noting long history of cases viewing annuity beneficiaries with the same analysis used in the life insurance context) Ohio s code does not define insurance or annuities, and its insurable interest rules are primarily based on common law, with uncertain applicability to annuities. See, e.g., Donahue v. Carpenter, 91WD057, 1992 WL (Ohio Ct. App. Mar. 31, 1992) (sustaining appeal of judgment on interpleaded proceeds of annuity contract, but not directly addressing the parties dispute regarding whether insurable interest rules applied to annuities) Pennsylvania s insurable interest requirement (40 PA. STAT. ANN. 512) only applies to a policy of life insurance, but the code does not define that term or distinguish it from annuities. Some case law exists distinguishing the two types of products, but not in the context of insurable interest, e.g., In re Estate of Bayer, 345 Pa. 308, 26 A.2d 202 (1942) (noting obvious differences between annuities and life insurance contracts and finding that they are to be treated differently for taxation purposes) See Conreal, 2010 WL at ** See Conreal, 2010 WL at ** Such contracts, for example, often require the brokerage firm to train and supervise its agents, to indemnify the insurer for its agents wrongful acts (see, e.g., RI complaint, supra note 16 at 92-97), and might also obligate agents to use only approved materials to market the insurer s products (which, presumably, do not include flyers distributed at hospices and churches) E.g. RI complaint, supra note 16 at E.g. id. at See Consolidated Memorandum in Response to Defendants Motions to Dismiss in Trasamerica Life Ins. Co. v. Lifemark Securities Corp., Civ. No. 1:09-cv (D.R.I. Feb. 1, 2010), at E.g. id. at Conreal, 2010 WL at * Id. at ** Conreal, 2010 WL at *14 n Id Id. (citing R.I. Depositors Econ. Protection Corp. v. Bowen Court Assoc., 763 A.2d 1005, 1009 (R.I. 2001); Giannone v. Ayne Inst., 290 F.Supp.2d 553, 563 (E.D. Pa. 2003) See, e.g., Aldrich v. Travelers Ins. Co., 317 Mass. 86, 89, 56 N.E.2d 888, 889 (1944) ( It is difficult to see how any company could carry on an annuity business if the estate of an annuitant could rescind whenever it turned out that the condition of his health did not warrant a reasonable expectation of life. ); Woodworth v. Connecticut Mut. Life Ins. Co., 27 F. Supp. 732 (S.D.N.Y. 1939); Am. State Bank of Bloomington v. Nat l Life Ins. Co., 297 Ill. App. 137, 17 N.E.2d 256 (Ill. App. Ct. 1938) Such cases typically involve suits by the annuitant s estate, seeking to rescind a policy based on the fact that neither the annuitant nor the insurance company knew of the annuitant s failing health. See generally cases cited supra note Restatement (Second) of Contracts 153 (1981) Id David McDowell is a name partner at Edison, Mc- Dowell & Hetherington LLP. He has extensive experience in commercial litigation, class action litigation, arbitrations, forced receiverships and securities arbitrations. David counts numerous financial services companies as clients and acts as regional and national counsel on a variety of issues. Prior to forming Edison, McDowell & Hetherington LLP, David was a partner at Bracewell & Guiliani LLP. He was also deputy general counsel of litigation for a large financial services company. Tom Hetherington is a trial partner in the Houston office of Edison, McDowell & Hetherington LLP. His practice focuses on a wide range of commercial litigation matters, including financial services litigation; life, health and disability insurance litigation; strangerowned life insurance ( STOLI ) litigation; ERISA litigation; energy-related litigation; construction litigation; real estate litigation; securities fraud litigation; shareholder litigation; corporate merger litigation; business tort litigation and complex commercial disputes. Kendall Burr is an attorney in the Houston office of Edison, McDowell & Hetherington LLP. His practice focuses on a wide variety of commercial litigation matters, including trade secret misappropriation and unfair competition litigation; life insurance litigation; financial services litigation; and other complex commercial disputes. He also has litigation and arbitration experience in disputes involving, among other issues, director liability, corporate opportunity, unfair competition, employment, trademark, copyright, patent, real estate, bankruptcy, business tort, contract and securities claims. 54 NYSBA NY Business Law Journal Summer 2012 Vol. 16 No. 1

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